Politicized Hiring of Immigration Judges and BIA: Not the End of the Story

WASHINGTON, DC -- The American Immigration Lawyers Association (AILA) congratulates the Department of Justice (DOJ) Offices of Professional Responsibility and Inspector General for the difficult work reflected in their July 28, 2008 report highlighting the malfeasance of the DOJ with respect to the hiring of Immigration Judges and members of the Board of Immigration Appeals (BIA). However, AILA urges that steps be taken to help undo the damage caused by the Department's illegal hiring practices, and that further probing explore activities both prior to and after the period covered by the report.

Undoing the Damage

The Immigration Judges (IJs) hired through these improper means now sit on the immigration bench, deciding immigration cases. Because there is no right to appointed counsel in immigration cases the vast majority of people appearing before IJs are self-represented. Thus, an important role of the IJ is to guide the individual through the process and elicit possible grounds of defense. Yet, most of the politically-based appointees lack background in immigration law and thus came to the bench with no ability to do this, nor with the knowledge necessary to properly weigh the legal issues before them. It is no surprise that the onset of political appointments led to an upswing in the number and vehemence of appellate court decisions criticizing the quality of IJ work.

"These IJs were selected as though they were political appointees," noted Charles Kuck, AILA's President, "and thus should be treated as political appointees with respect to their tenure. They should be removed, or remove themselves, from office when the Administration comes to an end. The people who engaged in or benefited from these unlawful hiring practices should not also benefit from civil service protections to ensconce them in their positions beyond the political term."

There's More to the Story

The report reflects events from 2003 to 2007. AILA urges that the Inspector General and Congress also look closely at periods both before and since with respect to the BIA. In 2002, the DOJ eliminated eight members of the Board through the pretext of a reduction in the size of the Board at a time when the BIA's workload was tremendous. It was not the most recently hired BIA members who were eliminated-instead it seems that those who were removed tended to be less "hard-lined." In other words, it gave every appearance of being an ideological purge.

Then, last month, the DOJ re-expanded the BIA, appointing five new Board members including one of the politically-motivated IJ appointees highlighted in the report. This particular IJ, Garry Malphrus, was not only the focus of questions regarding how he was hired, but was noted in the report as having been involved in other politically-based hiring efforts, including an effort to appoint a Chief Immigration Judge he praised for his "loyalty" to the Bush Administration (even though that individual was not so appointed).

Further, the report described earlier failed efforts by Monica Goodling to appoint Mr. Malphrus to the BIA. "It seems that all that DOJ did was wait out the report in order to go ahead and name its political appointee to the Board," said Kuck. "This gives every appearance of the Department continuing the practices criticized in the report. This appointment cannot go unexamined."

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The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members. For more information call George Tzamaras at 202-507-7649 or Annie Wilson at 202-507-7653.